Sri Vijay Singh Rawal, Jalpaiguri V. ITO, WD-1(4), JALPAIGURI, Jalpaiguri

ITA 74/KOL/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0783 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 18-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SHRI A T VARKEY, JM, & SHRI M.BAL AGANESH, AM] I.T.A NO. 74 /KOL/201 6 ASSESSMENT YEAR : 2011-1 2 SUNITA VIJAYAN, LEGAL HEIR OF -VS- ITO, WARD-1 (4), JALPAIGURI SHRI VIJAY SINGH RAWAL [PAN: ACSPR 3474 R ] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SUBASH AGARWA L, ADVOCATE FOR THE RESPONDENT : SHRI SAURABH KUMAR, ADDL . CIT SR. DR DATE OF HEARING : 26.11.2018 DATE OF PRONOUNCEMENT : 30.11.2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-JALPAIGURI [IN SHORT THE LD CIT(A)] IN APPEAL NO. 21/JAL/CIT(A)/JAL/2013-14 DATED 20.11.2015 AGAINST THE ORDER PASSED BY ITO, WARD-1(4), JALPAIGURI [ IN SHORT THE LD AO] UNDER S ECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 28.03.2014 FOR THE ASSESSMENT YEAR 2011-12. 2 ITA NO.74/KOL/2016 SUNITA VIJAYAN, LEGAL HEIR OF SHRI VIJAY SINGH RAWA L A.YR. 2011-12 2 2. AT THE OUTSET, WE FIND THAT MRS. SUNITA JAIN, LE GAL HEIR OF LATE VIJAY SINGH RAWAL HAD FILED REVISED FORM NO. 36 BEFORE US IN ORDER TO IND ICATE THAT THE ORIGINAL ASSESSEE, I.E. VIJAY SINGH RAWAL HAD EXPIRED AND THAT SHE IS THE L EGAL HEIR AND ACCORDINGLY THIS APPEAL IS FILED BY HER IN THE CAPACITY OF LEGAL HEIR ON B EHALF OF THE DECEASED ASSESSEE. THE SAME IS TAKEN ON RECORD AND APPEAL IS TAKEN UP FOR HEARI NG. 3. GROUND NOS. 1 TO 4 RAISED BY THE ASSESSEE WERE S TATED TO BE NOT PRESSED BY THE LD. AR AT THE TIME OF HEARING. THE SAME IS RECKONED AS STA TEMENT FROM THE BAR AND ACCORDINGLY GROUND NOS. 1 TO 4 ARE DISMISSED AS NOT PRESSED. 4. GROUND NOS. 7 TO 10 ARE GENERAL IN NATURE AND DO ES NOT REQUIRE ANY SPECIFIC ADJUDICATION. 5. THE ONLY EFFECTIVE ISSUE TO BE DECIDED IN THIS A PPEAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 40, 78,742/- BEING CREDITS IN THE BANK ACCOUNT OF THE ASSESSEE AS UNEXPLAINED CASH CREDIT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESSEE IS AN INDIVIDUAL, EMPLOYED IN LUXMI TEA COMPANY LTD. AND POSTED AT MATELLI TEA ESTATE. THE RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 WAS FILED ON 20.07.2011 DECLARING TOTA L INCOME OF RS. 1,76,560/- ELECTRONICALLY. THEREAFTER, THE ASSESSEE FILED A MA NUAL RETURN ON 24.10.2011 DECLARING TOTAL INCOME OF RS. 7,43,380/- WHICH HAS BEEN DULY CONSIDERED BY THE LD. AO WHILE FRAMING THE ASSESSMENT. THE LD. AO OBSERVED THAT TH E ASSESSEE HAD MAINTAINED BANK 3 ITA NO.74/KOL/2016 SUNITA VIJAYAN, LEGAL HEIR OF SHRI VIJAY SINGH RAWA L A.YR. 2011-12 3 ACCOUNTS WITH AXIS BANK AND STATE BANK OF INDIA VID E A/C NOS. 035010100381086 AND 20019732491 RESPECTIVELY, WHEREIN SOME AMOUNTS WERE FOUND TO BE CREDITED, FOR WHICH NATURE AND SOURCE OF THOSE RECEIPTS WERE SOUGHT TO BE EXPLAINED. THE DETAILS OF THE SAME ARE AS UNDER: THE ASSESSEE EXPLAINED THAT THE CASH DEPOSITS INTO THE BANK ACCOUNT WERE MADE OUT OF ASSESSEES AGRICULTURAL INCOME, SALE OF OLD FARM HO USE AND MONEY RECEIVED FROM THE ASSESSEES SPOUSE AND SOME OF HIS RELATIVES ON ACCO UNT OF SETTLEMENT OF FAMILYS PROPERTY DISPUTES. THE LD. AO OBSERVED THAT NO SUPP ORTIVE EVIDENCES WERE FURNISHED BY THE ASSESSEE IN SUPPORT OF HIS CONTENTIONS. ACCORDI NGLY, HE PROCEEDED TO TREAT THE ENTIRE DEPOSITS OF RS. 40,78,742/- AS UNEXPLAINED CASH CRE DIT AND ADDED THE SAME U/S 68 OF THE ACT, IN THE ASSESSMENT. 7. THE ASSESSEE, BEFORE THE LD. CIT(A), STATED THAT THE SOURCE OF CASH DEPOSITS WERE MADE OUT OF AGRICULTURAL INCOME RECEIVED IN CASH, S ALE OF OLD FARM HOUSE, SOME PORTION OF AMOUNT RECEIVED FROM ASSESSEES SPOUSE AND MAJOR PORTION OF DEPOSITS CAME FROM HIS 4 ITA NO.74/KOL/2016 SUNITA VIJAYAN, LEGAL HEIR OF SHRI VIJAY SINGH RAWA L A.YR. 2011-12 4 DECEASED FATHER. THE ASSESSEE HAS STATED THAT HIS D ECEASED FATHER GOT THE SAID AMOUNT AS COMPENSATION ON COMPULSORY ACQUISITION OF AGRICULTU RAL LAND FROM NOIDA DEVELOPMENT CORPORATION. SINCE THE ASSESSEE WAS STAYING VERY CL OSE TO HIS FATHER AND BECAME CLOSE CONFIDANT OF HIS FATHER TO ACCUMULATE THE TOTAL AMO UNT TO HIS ACCOUNT IN ORDER TO SETTLE TO THE LEGAL HEIRS AFTER HIS DEATH, IN GOOD FAITH, TH E ASSESSEE HAD ACCUMULATED THE SAID MONEY AND KEPT IN HIS ACCOUNT. THE ASSESSEE HAS FUR NISHED THE COPY OF LAST WILL OF HIS FATHER LT. COL. (RETD.) JAGMAL SINGH DATED 08.09.20 09. THE WILL STATED ABOUT DISTRIBUTION OF VARIOUS IMMOVABLE PROPERTIES AMONG THREE SONS, ONE DAUGHTER AND ONE GRANDSON AFTER THE DEMISE. AS PER THE WILL, LT. CO L. (RETD.) JAGMAL SINGH HAD NOMINATED HIS YOUNGER SON SHRI VIJAY SINGH RAWAL I.E. THE ASS ESSEE HEREIN, FOR HIS PENSION ACCOUNT IN SB A/C NO. 11047317718 WITH SBI , MEERUT CANTONM ENT BRANCH. THE LD. CIT(A) FOUND THAT THIS WILL IS OF NO RELEVANCE AND DOES NO T EXPLAIN THE SOURCE OF VARIOUS CREDIT ENTRIES IN THE BANK ACCOUNT HELD BY THE ASSESSEE. H E ALSO OBSERVED THAT NO EVIDENCE WAS SUBMITTED BY THE ASSESSEE REGARDING THE DATE OF DEA TH OF MR. JAGMAL SINGH IN ORDER TO MAKE THE WILL BECOME OPERATIONAL. SINCE NO EVIDENCE S WERE SUBMITTED BY THE ASSESSEE TO EXPLAIN THE SOURCE OF CREDITS IN BANK ACCOUNT, THE LD. CIT(A) UPHELD THE ACTION OF THE LD. AO BY CONFIRMING THE ADDITION N OF RS. 40,78,74 2/-. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THA T THE LD. AR STATED THAT THE ASSESSEE WAS HAVING SALARIED INCOME AND OTHER INTEREST INCOM E CLOSE TO RS 10 LACS AS GROSS TOTAL INCOME FOR THE YEAR IN ADDITION TO AGRICULTURAL INC OME OF RS. 1 LAC. CERTAINLY THE ASSESSEE COULD HAVE MADE REASONABLE SAVINGS IN ORDE R TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN THE SUM OF RS. 5,70,000/- MADE IN THE B ANK ACCOUNT ON VARIOUS DATES. HENCE HE ARGUED THAT THE SOURCE OF CASH DEPOSITS IN THE S UM OF RS. 5,70,000/- SHOULD BE TREATED AS EXPLAINED. HE ALSO FURNISHED A FUND FLOW STATEME NT EXPLAINING THE NATURE AND SOURCE OF EACH CREDIT AND ALSO CAME FORWARD TO OFFER SOME PORTION OF THE CREDITS TO TAX AS 5 ITA NO.74/KOL/2016 SUNITA VIJAYAN, LEGAL HEIR OF SHRI VIJAY SINGH RAWA L A.YR. 2011-12 5 ADDITIONAL EVIDENCES WITH A PRAYER TO ADMIT THE SAM E ON THE GROUND THAT THE ASSESSEE DURING THE PENDENCY OF PROCEEDINGS BEFORE THE LOWER AUTHORITIES WAS NOT IN PROPER STATE OF MIND AS HE WAS SUFFERING FROM METASTATIC NSCLC W ITH BRAIN AND BONE METASTASES WHICH ULTIMATELY LEAD TO HIS DEMISE ON 17.06.2016. WE FIND THAT THE ASSESSEE HAD SOUGHT TO EXPLAIN THE NATURE AND SOURCE OF EACH AND EVERY CREDITS IN THE BANK ACCOUNT BY WAY OF THIS ADDITIONAL EVIDENCE WHICH IN OUR CONSIDERED OP INION, REQUIRES TO BE ADMITTED. WE ALSO FIND THAT THESE ADDITIONAL EVIDENCES WERE NOT EXAMINED BY THE LD. AO AS EXPLANATION WAS NOT OFFERED BY THE ASSESSEE IN THE FIRST ROUND OF PROCEEDINGS. HENCE IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE DEEM IT F IT AND APPROPRIATE, TO REMAND THIS APPEAL TO THE FILE OF LD. AO FOR DE NOVO ADJUDICATION OF T HE ISSUE OF TOTAL DEPOSITS IN THE SUM OF RS. 40,78,742/- AND PASS AN ORDER IN ACCORDANCE WIT H LAW. THE ASSESSEE IS GIVEN FULL LIBERTY TO FURNISH FRESH EVIDENCE IN SUPPORT OF HIS CONTENTIONS. IN VIEW OF THESE DIRECTIONS, NO OPINION IS HEREBY GIVEN ON THE MERIT S OF THE ADDITION. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STAT ISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 30.11.2 018 SD/- SD/- [A T VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30.11.2018 SB, SR. PS 6 ITA NO.74/KOL/2016 SUNITA VIJAYAN, LEGAL HEIR OF SHRI VIJAY SINGH RAWA L A.YR. 2011-12 6 COPY OF THE ORDER FORWARDED TO: 1. SUNITA VIJAYAN, LEGAL HEIR OF LATE VIJAY SINGH R AWAL, C/O., SUBASH AGARWAL & ASSOCIATES, SIDDHA GIBSON, 1, GIBSON LANE, 2 ND FLOOR, SUITE-213, KOLKATA-700069. 2. ITO, WARD-1(4), JALPAIGURI 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES